Funk (Kevin) petitions this Court for a writ of habeas corpus
alleging illegal incarceration with excessive bail since June
26, 2016, in the Lake County Jail. He requests his immediate
release with "NO PROBATION" and "ZERO SUM
BOND." We amend the caption to correct the spelling of
the Captain's last name.
does not provide the basis for his current detention. Kevin
references his cause number in the Lake County District
Court, but he does not provide any substance to his
allegations. Available electronic records indicate that the
State charged Kevin with one count of felony criminal
mischief and two counts of misdemeanor criminal trespass on
May 31, 2016. The District Court originally scheduled his
sentencing for February 15, 2017, which was continued one
week. Kevin has since received a five-year commitment, with
no time suspended, to the Department of Corrections for the
review of the petition, Kevin is not entitled to immediate
relief. Kevin uses the petition to challenge his divorce
decree and this Court's subsequent rulings. Citing to
federal law and cases, he explains that the 2.5 acre
lakefront property was acquired in trust and claims that this
federal land patent should not have been included in his
divorce. He also resurrects claims about the parenting plan,
contact with his child, and the transfer of funds. He asserts
that his due process rights have been violated because he was
not given notice of this property's sale.
Court is familiar with Kevin's claims through his prior
appeals of his dissolution proceedings. In 2011, through
counsel, Kevin argued that the District Court erred in
awarding his spouse a portion of his inherited property upon
dissolution of marriage. In re Marriage of Funk (Funk
I), No. DA 11-0209, 2012 MT 14, ¶ 2, 363 Mont. 352,
270 P.3d 39. By way of background, Kevin and Bernita June
Funk (June) were married in 1990. Funk I, ¶ 3.
"In 1996, Kevin's father died and Kevin inherited
over 115 acres of real property, 2.5 acres of which is
lakefront property on Flathead Lake." Funk I,
¶ 3. June filed for divorce in 2009. Funk I,
¶ 3. "[T]he focus of this appeal [was] the District
Court's distribution of the property Kevin inherited or
acquired with inherited funds." Funk I, ¶
Court, after clarifying § 40-4-202, MCA, and the
relevant case law, affirmed in part the court's decision
as to the "award of the 2005 Toyota Sienna to June and
its valuation of Kevin's lakefront property."
Funk I, ¶ 34. We stated that "the District
Court must refer to the factors enumerated in [this statute]
in its findings and conclusions relative to the inherited
property." Funk I, ¶ 24. We remanded the
matter to the District Court.
as a self-represented litigant, Kevin appealed the District
Court's decision following our remand. In re Marriage
of Funk, No. DA 13-0023, 2013 MT 180N, ¶¶ 2,
6, 2013 Mont. LEXIS 232 (Funk II). In our decision,
we noted that June cited to law-of-the-case principles which
barred Kevin from litigating these issues again. Funk
II, ¶ 6. This Court concluded that the court
complied with the remand instructions and that "Kevin
has failed to demonstrate any error or abuse of discretion in
the District Court's Post Remand Amendment to the
Findings of Fact, Conclusions of Law and Order of Decree of
Dissolution." Funk II, ¶ 6. We, therefore,
affirmed the District Court.
is attempting to litigate an issue which this Court has
already decided. He challenges the court's division of
this property which we determined was appropriate and
required under § 40-4-202, MCA. Funk I, ¶
34 and Funk II, ¶ 5. The trust to which Kevin
refers terminated upon his father's death in 1996.
Section 72-33-411, MCA (1995). At this point, the trust does
not exist nor does Kevin's interest in this land
subsequent to the sale. The doctrine of law of the case is
"based on judicial policy favoring a definite end to
n litigation." Federated Mut. Ins. Co. v.
Anderson, 1999 MT 288, ¶ 58, 297 Mont. 33, 991 P.2d
915. Furthermore, he brings these challenges in a petition
for habeas corpus relief which cannot stand.
corpus is available to challenge the sufficiency of the legal
cause for incarceration." Sage v. Gamble, 279
Mont. 459, 463, 929 P.2d 822, 824 (1996); §
46-22-101(1), MCA. Kevin bears the burden of demonstrating
sufficient legal cause to persuade us to grant the writ of
habeas corpus. Miller v. Eleventh Jud. Dist. Ct.,
2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. Kevin
has not met his burden. The reason for his current detention
is based upon his 2016 criminal offenses upon this lake front
property. He presently is represented by counsel. The process
due an individual varies according to the factual
circumstances and nature of the right at stake.
Sage, 279 Mont, at 464-65, 929 P.2d at 825. Kevin
has failed to establish that he has not been afforded due
process in his underlying criminal proceeding or that he has
been deprived of statutory or constitutional rights.
Accordingly, IT IS ORDERED that the petition for a writ of
habeas corpus is DENIED.
Clerk of Court is directed to provide a copy of this Order to
counsel of ...